MacKenzie v. Jackson

Simmons, Justice. A mortgage fi. fa. in favor of Louisa E. Jackson against N. L. Seales, for the sum of $1,500 principal, and interest and costs, and for attorney’s fees, was levied upon certain realty described in the fi. fa. A claim was interposed by MacKenzie, and an equitable plea filed, the facts alleged therein being fully set out in the official report of this case. On the trial of the case, the mortgage and fi. fa. were introduced in evidence by the plaintiff; and it appeared that the mortgage had been recorded by the clerk of the superior court of Burke county, where the trial was had. The claimant testified that at the time he bought the land, he had no knowledge of the existence of this mortgage. The' court rejected the claimant’s testimony to this effect, on the ground that the record was notice. Other testimony was offered and rejected, and other rulings made by the court to which exception was taken in the bill of exceptions, but which it is unnecessary to notice here, in the view we take of this case. The mortgage given by Scales to Mrs. Jackson was [84] executed iu the State of Arkansas, and was witnessed by John W. Howell, county judge, and Edward Reid. The probate thereon was as follows: “State of Arkansas, Garland County: “I, T. T. Beldin, circuit clerk and ex officio clerk of the county-court of Garland county, Arkansas, do certify that John W. Howell is a duly commissioned and qualified judge of the county court for said county, authorized to administer paths and take acknowledgments; that I am acquainted with the handwriting of said judge, and believe his signature to the foregoing to be genuine. “In witness whereof I have hereunto set my hand and the seal of the county court of Garland county. Tip. Beddin, clerk, by Edward Reid, D. C.” It was insisted by counsel for the plaintifi in error that this probate of the mortgage was not in accordance with section 2706 of our code, which section is as follows : “To authorize the record of a deed to realty or personalty, it must be attested, if executed out of this State, by a commissioner of deeds for the State of Georgia, or a consul or vice-consul of the United States (the certificates of these officers, under their seals, being evidence of the fact,) or by a judge of a court of record in the State where executed, with a certificate of the clerk, under the seal of such court, of the genuineness of the signature of such judge,” etc. 1. It was insisted that this mortgage, not having been attested and probated in accordance with the foregoing section of the code, was not properly recorded, and was therefore no notice to the purchaser. ¥e think that the court 'below erred in holding that the' record of the mortgage was notice. In our opinion, it was improperly recorded. The section above cited requires that when a deed is executed out of the State, it shall be attested, either by a commissioner of deeds of this State, a consul or vice-consul of the United States, or the judge of a court of record. "While one of the attesting witnesses to this instrument signs as judge of the county court, [85] the certificate of the clerk does not show that that court was a court of record, nor was it shown by proper proof upon the trial in the court below. If the statute of Arkansas had been introduced on the trial, and it had been shown that the county court of Garland county was a court of record, perhaps that would have been sufficient to have cured the defect in that particular; but this was not done; nor was any statute of that State, showing that the county court of Garland county was a court of record, shown to us in the argument here. This section of the code also requires (supra, §2706,) that the clerk of such court shall certify under the seal of the court “ the genuineness of the signature of such judge.” The clerk in this case simply certifies : “ I am acquainted with the handwriting of said judge, and believe his signature to the foregoing to be genuine.” "We do not think this complies with the law. The clerk, under our law, must certify positively that the signature is genuine. Nor is it an unreasonable requirement. If a judge of a court of record attests a paper, signing his name thereto, the clerk of that court ought to be able to certify positively as to the genuineness of the signature. He knows the judge, has seen him write, and can see him sign his name if necessary, and therefore can certify positively as to the genuineness of the signature. In addition to this, the probate is not signed by the clerk of the court, but appears to be signed by a deputy. It is signed “ Tip Beldin, clerk, by Edward Reid, D. C.” So it appears that Beldin was the clerk, and did not certify at all, although his name is to the probate-While it may bo true that a deputy-clerk may perform any duty that the clerk is authorized to perform, we are inclined to think that when the deputy-clerk certifies, he must certify over his own signature, and not that of the principal clerk as was done in this case. Eor these [86] reasons, we hold that this mortgage was improperly admitted to record, and being improperly admitted to record, the record thereof was no notice to the purchaser in this case. The court therefore erred in holding that the record was notice to this purchaser. It was insisted for the plaintiff in error, that counsel for the defendant in error ought not to be allowed to make objection to the probate of the mortgage here, because that point was not made before the court below and ruled on there. • "We cannot take judicial notice of the oral contentions of the parties in the court below. The only matters of which we can take cognizance here, in the proceedings in the court below, are such matters as are certified by the judge of the court below as having transpired therein. In this case, as the bill of exceptions alleges, the court below ruled that the recording o'f this mortgage was notice to the purchaser. The question, therefore, is plainly and distinctly made in this record, and it is our duty to take cognizauee of it and pass upon it. It may be true that the attention of the court below was not called to the defective probate of this mortgage, and it may be true that all the reasons and arguments presented here were not presented to the court below; but we hold that, whore a point is plainly and distinctly made in the record, it is our duty to pass upon it when it is insisted on before us. 2. There was no error in ruling out the testimony of Lovett as to the custom or habit of the. clerk of the court to indorse on papers given him for record, that they were recorded on the day they were left at his office for record; nor was there any error in ruling out his testimony as to the sayings of the person in charge of the office when he (Lovett) was examining the records. 3. It was insisted by counsel for the plaintiff in error • [87] that, although this mortgage may have been defectively recorded and was no notice to the purchaser, yet as the purchaser had not paid the purchase money and therefore had not been damaged, and has filed an equitable plea in this case, equity will protect Mrs. Jackson in all of her rights the same as if the purchaser had had notice ; because, they insist, in equity she would have an equitable lien which would still be paramount to the rights of a bona fide purchaser, said purchaser not having paid any of the purchase money. This may or may not.be true, but we will not decide it now. Ve cannot pass upon her equitable rights in this case, because it appears from the record that she did not respond to MacKenzie’s equitable plea, but insisted upon her legal rights. There is no question of this sort made in the bill of exceptions. On the next trial, this question may be made, under proper pleadings, and when made, will doubtless be adjudicated properly by the court below. Judgment reversed.